Stidham v. Clark

• Decision Date: 16 May 2002
• Docket Number: No. 2000-SC-0968-MR.,2000-SC-0968-MR.
• Citation: 74 S.W.3d 719
• Parties: Michael A. STIDHAM, Appellant, v. Thomas L. CLARK, Judge, Fayette Circuit Court, Appellee, and Dr. Edwin Bunch; Ray Larson, Commonwealth Attorney, Fayette County, Kentucky; and Cynthia T. Rieker, Assistant Commonwealth Attorney, Fayette County, Kentucky (Real Parties in Interest), Appellees.
• Court: United States State Supreme Court — District of Kentucky

74 S.W.3d 719

Michael A. STIDHAM, Appellant, v. Thomas L. CLARK, Judge, Fayette Circuit Court, Appellee, and Dr. Edwin Bunch; Ray Larson, Commonwealth Attorney, Fayette County, Kentucky; and Cynthia T. Rieker, Assistant Commonwealth Attorney, Fayette County, Kentucky (Real Parties in Interest), Appellees.

No. 2000-SC-0968-MR.

Supreme Court of Kentucky.

May 16, 2002.

R. Burl McCoy, John Kevin West, Tonya S. Conner, McCoy & West, Lexington, Counsel for Appellant.

Thomas L. Clark, Lexington, Counsel for Appellee Thomas L. Clark, Judge, Fayette Circuit Court.

Reuben G. Walker, Jr., Walker, Emmons, Shannon & Baird, P.S.C., Richmond, Counsel for Real Party in Interest Appellee Dr. Edwin Bunch.

Raymond Larson, Commonwealth Attorney, Lexington, Counsel for Real Party in Interest Appellee Ray Larson, Commonwealth Attorney, Fayette County, Kentucky.

Cynthia T. Rieker, Assistant Commonwealth Attorney, Fayette County, Lexington, Counsel for Real Party in Interest Appellee Cynthia T. Rieker, Assistant Commonwealth Attorney, Fayette County, Kentucky.

COOPER, Justice.

Appellant Michael A. Stidham appeals from the denial of his petition for a writ of prohibition filed against Appellee Thomas L. Clark, Judge of the Fayette Circuit Court, to prohibit him from authorizing the release to a Fayette County grand jury of records pertaining to Appellant's treatment by Dr. Edwin Bunch, a licensed psychiatrist. The Court of Appeals denied the petition in a one-sentence order that stated no reason for the denial. However, an earlier order denying Appellant's motion for emergency relief under CR 76.36(4) stated that "[t]he petitioner has not made an adequate showing that the respondent judge has abused his discretion in permitting the discovery of the questioned documents...." Because the disclosure of information claimed to be privileged is not discretionary but requires a finding that the information falls either within or outside the scope of the privilege or within a specified exception to the privilege, and because the record does not reflect that the Commonwealth met the applicable burden of proof necessary to even warrant an in camera review of Dr. Bunch's records, we reverse.

The grand jury seeks to review Dr. Bunch's records to determine if Appellant has violated KRS 218A.140(1) by obtaining prescriptions for the same controlled substance from multiple medical practitioners by withholding information from each practitioner that the same prescription has been obtained from another or other practitioner(s). The Appellee Commonwealth's attorney (hereinafter "the Commonwealth") refers to this offense as "doctor shopping." The grand jury caused a subpoena duces tecum to be served on Dr. Bunch to produce "any and all medical records, including any and all narcotics, contracts, and any and all patient history forms" pertaining to Appellant. The issue was joined by Appellant's motion to quash the subpoena on grounds that the subpoenaed records of his treatment fall within the psychotherapist-patient privilege defined in KRE 507(b):

General rule of privilege. A patient, or the patient's authorized representative, has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications, made for the purpose of diagnosis or treatment of the patient's mental condition, between the patient, the patient's psychotherapist, or persons who are participating in the diagnosis or treatment under the direction of the psychotherapist, including members of the patient's family. (Emphasis added.)

KRE 507(c) identifies three exceptions to the general rule of privilege, none of which apply to this case.

The Commonwealth asserted in response to the motion to quash that (1) Dr. Bunch's records are not privileged records of psychotherapeutic treatment of a mental condition but unprivileged records of medical treatment of a physical condition, or, in the alternative, (2) KRS 218A.280 creates an exception to the privilege in addition to those identified in KRE 507(c). KRS 218A.280 provides:

Information communicated to a practitioner in an effort unlawfully to procure a controlled substance, or unlawfully to procure the administration of any controlled substance, shall not be deemed a privileged communication.

Judge Clark concluded that whether any or all of the entries in Dr. Bunch's records were privileged could only be determined by an in camera inspection of the entire 296-page record. Following that inspection, Judge Clark rendered an opinion and order finding that the records contain information pertaining to Dr. Bunch's treatment of both Appellant's chronic pain, which was deemed to be medical treatment of a physical condition, and his treatment of psychological and emotional problems caused by that pain, which was deemed to be psychotherapeutic treatment of a mental condition. The judge also found that the records pertaining to the treatment of Appellant's mental condition contain no information falling within the parameters of KRS 218A.280. Accordingly, he concluded that the grand jury could review those entries in the records pertaining to Dr. Bunch's diagnosis and treatment of Appellant's chronic pain but not those entries pertaining to his diagnosis and treatment of Appellant's psychological and emotional problems. The Commonwealth has not contested the latter conclusion, perhaps because the prescriptions claimed to have been obtained in violation of KRS 218A.140(1) were for pain medication. Regardless, since Dr. Bunch's records are not before us for review, we could not determine, even if asked, whether Judge Clark's KRE 104(a) findings of fact with respect to the contents of Dr. Bunch's records are clearly erroneous. Our inquiry is limited to determining what evidence is required to overcome a prima facie showing of privilege and whether sufficient evidence was introduced in this case to warrant the in camera review that resulted in Judge Clark's findings.

I. PSYCHOTHERAPIST-PATIENT PRIVILEGE.

Our analysis begins with the almost universally accepted rule that testimonial privileges are generally disfavored and should be strictly construed. Slaven v. Commonwealth, Ky., 962 S.W.2d 845, 853 (1997). "For more than three centuries it has now been recognized as a fundamental maxim that the public ... has a right to every man's evidence. When we come to examine the various claims of exemption, we start with the primary assumption that there is a general duty to give what testimony one is capable of giving and that any exemptions which may exist are distinctly exceptional, being so many derogations from a positive general rule." John W. Wigmore, 8 Evidence § 2192, at 70 (Little Brown & Co., McNaughton Rev. 1961). See also United States v. Nixon, 418 U.S. 683, 710, 94 S.Ct. 3090, 3108, 41 L.Ed.2d 1039 (1974) ("exceptions to the demand for every man's evidence are not lightly created nor expansively construed, for they are in derogation of the search for the truth."). Privileges exist as a matter of policy, not reason. Reason mandates admission of evidence that is relevant, competent, and properly authenticated. Policy, however, may mandate exclusion of evidence where necessary to promote a free flow of communication under circumstances indicating an "imperative need for confidence and trust." Jaffee v. Redmond, 518 U.S. 1, 10, 116 S.Ct. 1923, 1928, 135 L.Ed.2d 337 (1996) (quoting Trammel v. United States, 445 U.S. 40, 51, 100 S.Ct. 906, 913, 63 L.Ed.2d 186 (1980)). To that end, the United States Supreme Court has recognized the psychotherapist-patient privilege for federal courts, Jaffee v. Redmond, supra, and all fifty states and the District of Columbia have adopted some form of psychotherapist privilege. Id. at 12, 116 S.Ct. at 1929. Even before the 1992 adoption of KRE 507, there had been a statutory psychologist-patient privilege in Kentucky since 1948, KRS 319.110,¹ and a statutory psychiatrist-patient privilege since 1966, KRS 421.215.²

Unlike the testimonial privileges recognized in federal courts that, pursuant to Federal Rule of Evidence (FRE) 501, are the product of common law development,³ Kentucky's testimonial privileges are codified in Article V of the Kentucky Rules of Evidence (KRE). KRE 501 includes no provision for common law development of testimonial privileges:

Except as otherwise provided by Constitution or statute or by these or other rules promulgated by the Supreme Court of Kentucky, no person has a privilege to:

(1) Refuse to be a witness;

(2) Refuse to disclose any matter;

(3) Refuse to produce any object or writing; or

(4) Prevent another from being a witness or disclosing any matter or producing any object or writing. (Emphasis added.)

KRE 507 combined three pre-existing statutory privileges (all repealed concomitantly with the adoption of Kentucky Rules of Evidence), i.e., the psychiatrist-patient privilege (KRS 421.215), the psychologist-patient privilege (KRS 319.111), and the clinical social worker-patient privilege (KRS 335.170(2)), into one "psychotherapist-patient" privilege. See Commentary to KRE 507, Evidence Rules Study Committee, Final Draft (1989). As the language of KRE 507 indicates, the privilege applies to (1) "confidential communications" (2) "between a patient, the patient's psychotherapist, or persons who are participating in the diagnosis and treatment under the direction of the psychotherapist" (3) "made for the purpose of diagnosis or treatment" (4) "of a mental condition." Unlike the lawyer-client privilege, KRE 507 does not include a so-called "crime-fraud exception" for communications made for the purpose of committing or abetting a crime or fraud (as opposed to communications concerning a crime or fraud already committed, for which there is no exception). See KRE 503(d)(1). And, unlike FRE 501, KRE 501 provides no common law authority to engraft such an exception onto KRE 507. (The procedure for amending the Kentucky Rules of...